United States: Nine Thoughts On The Ninth Circuit’s "Innocence of Muslims" Copyright Decision

Last Updated: March 11 2014
Article by David A. Kluft

By now, you've probably heard the agonized shrieks of your friendly neighborhood copyright lawyer, decrying the Ninth Circuit's opinion Garcia v. Google. If you haven't had the time or inclination to read the opinion, here is a quick synopsis, followed by our list of nine ways in which many find the Ninth Circuit's February 26, 2014 decision somewhat troubling.

Synopsis

Cindy Lee Garcia agreed to act in a low budget film called "Desert Warrior," for which she was paid $500. The film she signed up for was never made, but the footage was repurposed into the now-infamous "Innocence of Muslims" trailer.  Garcia's voice was redubbed so that she appeared to be asking, "Is your Mohammed a child molester?"  When the trailer appeared on YouTube (owned by Google), Garcia became the subject of death threats, including even a fatwa from an Egyptian cleric.  Garcia filed eight DMCA takedown notices with YouTube, alleging copyright infringement.  When YouTube refused to remove the video, she sued the filmmakers for defamation and fraud, and also sued YouTube for copyright infringement.

Garcia filed a motion for injunctive relief, asking the District Court to force YouTube to take down the video. The District Court refused on the grounds that, even by Garcia's own admission, she was not an author or co-author of the film, and therefore had no legitimate copyright interest in it.  But on February 26, 2014, the Ninth Circuit reversed, holding that Garcia indeed probably had a protectable copyright interest in her 5-second performance in the trailer.  The Ninth Circuit ordered that the video be removed from YouTube. Since its release, this decision has received almost nothing but criticism.

Nine Troubling Things about the Ninth Circuit's Garcia v. Google Opinion

1. Authorship. Ownership of a copyright is vested in the first instance in the "author" of a "work." You can perform a work (e.g., play some music, read a poem, etc...), but that performance itself does not make you the author of a new copyrightable "work." The only work at issue here is the film. Traditionally, the author of a film is the director, producer, etc. – i.e., whoever makes the thing.  But Garcia, wishing to distance herself from the film's message, disavowed any assertion of authorship or joint-authorship and claimed copyright only in her own "performance."  The court, contrary to how copyright law has previously been interpreted, held that Garcia had some vague novel species of copyright authorship in her performance, as distinct from the film.

2. Fixation. In order for a work to be copyrightable, it has to be fixed by the author in a tangible medium of expression.  Here, the only fixation of Garcia's performance was in the film. Since Garcia didn't "fix" her performance independently, the court in effect borrows the fixation element from another author and another work, even though Garcia disavows any relationship with that other author and work. The court tries to soften the unprecedented nature of its ruling by pointing out that "pantomime and choreographic" works are independently copyrightable.  However, these types of work still need to be "fixed" by the author in order to be enforceable, for example in diagrams or in written descriptions.

3. Work for Hire. As the court acknowledges, most individual contributions to a film are considered works for hire, meaning that the copyright in the creative contribution belongs to the employer. This is often governed by contract, but just as often is governed by long-held assumptions about how copyright and employment law work. Here, the Court effectively held that only persons engaged in the "regular business" of filmmaking can take advantage of the work for hire doctrine in the movie context.  Otherwise, the court said (I'm not making this up), "every schmuck with a video camera becomes a movie mogul."

4. Practical Implications. The practical implications of the decision are potentially enormous.  Every person who appears in a movie or a photograph would have a potential separable copyright interest in their performance — distinct and in addition to their right of publicity. Would this new performance right be worth anything?  Maybe not. But it would be enough to issue a DMCA takedown notice.  Mom, take down those baby pictures of me from your Facebook page!  They make me look pudgy and besides, I own the copyright in my performance!

5. Just Contract Around It! The majority actually recognizes that what it has done will leave films and other collaborative works "entangled in an impenetrable thicket of copyright."  However, the court basically excuses this potential havoc by stating that "it rarely comes to that because copyright interests in the vast majority of films are covered by contract . . ."  In other words: if you think this opinion is crazy, don't worry, because you can contract around it.

6. Is this really going to help Ms. Garcia?  There is little doubt that this was a results-driven opinion. The court admitted as much, noting that since Ms. Garcia had received credible death threats, it was "best to err on the side of life."  This is certainly a legitimate concern.  However, the court fails to make a convincing case that removing the video from YouTube will nullify the death threats or cause the fatwa to be lifted.

7. The Balance of Equities. In balancing the equities, the court properly considered Garcia's legitimate interest in her physical safety.  However, on the other side, the court considered the bad acts of the filmmakers. What's wrong with this equation is that the filmmakers are not the parties being enjoined. Moreover, the court refused to give credence to YouTube's First Amendment arguments on the ground that the First Amendment doesn't protect copyright infringement.

8. This Isn't Really About Copyright. And that brings us to the real crux of the matter. Ms. Garcia's complaint is not really about copyright in the first place. There has been a spate of recent cases and disputes in which copyright law has been used as a cover for claims that in reality are about defamation, privacy, trademark infringement, the right of publicity or simply  where someone is trying to erase speech they don't like. In the case of YouTube, it has separate voluntary takedown policies for trademark infringement, defamation, privacy violations and harassment. So why is everyone trying to use copyright law instead? Probably because copyright law, unlike those other causes of action, give you the means to force a third party involuntarily to take down material from the internet quickly and without First Amendment concerns.  Here, Garcia's real problem was what the film did to her reputation and privacy interests. Only by a rather unusual interpretation of the Copyright Act has this tort claim against the filmmakers been transformed into a copyright claim against YouTube.

9. What about Fair Use? Even if there is such a thing as a separable copyright in performance, what about a fair use?  The Innocence of Muslims has become a legitimate topic of political, religious and cultural debate worldwide. Is the use of Garcia's 5-second appearance enough to completely stifle global criticism, commentary and scholarship?  And there is little doubt that the court's aim, far from simply dealing with a single instance of copyright infringement, has been to do exactly that. In fact, the court kept its order secret for several days before its release, expressly in order "to prevent a rush to copy and proliferate the film before Google can comply with the order." In other words, to try to prevent the video's preservation by third parties, without regard to the fact that undoubtedly many of those third parties' uses would be protected by the fair use doctrine or the First Amendment.

YouTube's Motion for an Emergency Stay of the order was denied.  The company has already indicated its intention to move for en banc review of the decision.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
14 Dec 2017, Seminar, Boston, United States

The trustees of The Foley Hoag Foundation invite you to the upcoming Speaker Series event with David Friedman, Senior Vice President, Legal & Government Affairs of the Boston Red Sox.

15 Dec 2017, Seminar, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.